Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-04-22
COURT OF APPEALS.
SynOpses of Decisions Rendered at the
Present Austin Sitting.

synopses of Decisions Rendered at the
Present Austin Sitting.
John P. White, presiding Judge; J. N.
Hurt and Sam a. Wilson, judges; James
L. White, clerk W. L. Davidson, assis-
tant attorney-general: NJ. NJ. Johnson,
baiIiff.
William Porter vs.. State, appeal from
Collin counts; opinion by White, p. j.
This case arose under the definition Of
theft in the meaning or comprehensive
ness of the word taking" Article 727
of the Penal Code provides among other
things that if the taking,
though originally lawful, was OBJ
tanned by any false pretext
! or with the intent of depriving the owner
OF the value thereof and appropriates the
property to the use, etc, of the person
taking, the offense is complete. In this
case the material question is, did the
facts in the record cons itute theft? 1t
is in proof that the money alleged
to have been stolen was loaned
by the prosecutor to the appellant
upon the promise to return it
when he had finished the game
of cards he was then playing. The court
instructed the jury that if they believed
! from the evidence that appellant and
! those indicted with him entered into
conspiracy to obtain the money to de-
prive the owner OF its value and ap-
prOprIate it to their possession,
and that the owner OF the money did not
part with the title to it but gave it to the
indicted parties on their promise to re
| turn it after the game, and that they did
not intend to comply with their promise;
that the jury would find the defend
ant, William Porter, guilty of theft. We
are of the opinion that the court
stated the case correctly in conformity
with the statute. The court did not
err IN refusing the special instruc
| tions asked for by appellant. This is
novel case, but in our opinion q case of
theft is made out and the Judgment is af
tlrmed.
Alexander Haney VS.. Gulf, Colorado
and Santa Fe Railway Company, from
Tarrant county. Opinion by Wilson, j.
This suit was brought by appellant to re-
cover damages caused to his homestead
in Fort Worth. Appellee in constructing
it's road caused GOughenant and Harding
streets to be SO torn up as to destroy
their use with reference to appellants
property and caused such collection
of water, filth, etc, that it rem
: dered his premises subject to miasma.
1t is shown by the evidence that appel
lant's residence is more than 800 feet
from the obstruction, and while it does
not prevent free ingress and egress to the
premises, yet it destroys the use of said
streets to appellant and others living in
what is known as the Goughenant addition,
as they were the most convenient avenues
to the business sections of the city. The
preponderance of evidence shows that
the premises were damaged, but there
were differences Of opinion 6s TO the
amount. The case was tried without a
jury, and the court decided that
there was no cause for action.
Appellee claims that the judgment is
correct as the damages, il any, were
shared in kind by the public generally.
The two main questions in this cause are:
l. Were the damages done appellants
premises peculiar and special to him or
were they general? 2. Does it make any
difference how far the obstruction is from
the premises if there is any damage done?
If the damage done appellants property
is shared in common by the public gen
orally it is a we'll established rule that
there can be no recovery. In this case,
while it is true that several other
property owners are damaged more
or less, yet it does not appear
that the principal portion of the city is
affected by it, and hence the public in
general are not affected. The law of
nuisance applies here, that while :
nuisance may be common to all who come
within the sphere of its operations, yet it
is special to those whose property APP
proximates the nuisance, and such prop
erty is deprecated in value or it's enjoy
ment is injured, and who can thus get
damages. In this case appellants prop
erty received such damages as comes
under the head of Especial" and he is
entitled to compensation. =. Does the
obstruction damage the property
The damage to property contemplated by
the constitution means any physical in
Jury to the right of user or enjoyment.
1t has been decided that it makes no diff
ference where the obstruction is located
if property is injured by it in manner
not general to the public, whether 1t be
in it's right of user or enjoyment, it
comes within the meaning of the cOnstt-
tuition, and damages can be recovered.
The measure of damages is the difference
between the market value Immediately
before and Immediately after the injury
done.
Because the judgment is contrary to
the law and evidence it is reversed and
the cause remanded.
Gulf, Colorado and Santa Fe Railway
Company VS.. Henry Smith, from Tarrant
county. Opinion by Wilson, j. This
is an exactly similar case to the one
above, (Haney VS.. the appellant), and
there is only one other question raised.
The court clearly charged the jury that
the measure of damages would be the
difference between the actual fair mar
ket value of the property at the time
this suit was brought and what its value
would have been had appellants road not
been built. While the charge is erro-
neous, the error is not material in
this case as there was only difference of
a few days in the courts charge and the
correction, and hence there is no material
error, and the judgment is affirmed.
Gulf, Colorado and Santa Fe Railway
Company vs.. Grant Ferguson, from
Tarrant county; opinion by Wilson, J.
The facts in this case are exactly similar
to those in case of Appellant vs.. Henry
Smith, and judgment is affirmed.
Gulf, Colorado and Santa Fe Railway
Company vs.. L. NJ. Moore, from Tara Mt
county; opinion by Wilson, J. Facts